2. Dale and Carter, "Topsoil and
Civilization" (quoted in E.F. Schumacher, Small is
Beautiful, 84 [Blond and Briggs, 1973]), say: "Civilized
man was nearly always able to become master of his environment
temporarily. His chief troubles came from his delusion that his
temporary mastership was permanent. He thought of himself as
'master of the world, while failing to understand fully the laws
of nature."

8. M. Cranston, What are Human Rights? (Basic
Books. 1963), quoted in P. Alston, "Conjuring Up New Human
Rights: A Proposal for Ouality Control," 78 A.J.I.L. 607.
615, n. 30 (1986): 'A human right by definition is a universal
moral right, something which all (people) everywhere at all times
ought to have, something of which no one may be deprived without
a grave affront to justice, something which is owing to every
human being simply because he is human."

9. W.P. Gormley, "The Right of
Individuals to Be Guaranteed a Pure. Clean and Decent
Environment: Future Programs of the Council of Europe,"
381975 Legal Issues in European Integration.

11. The National Environmental Policy Act
of 1969 (enacted by the United States Congress) Pub. L. No.
91-190, Section 101(a), 83 Stat. 852 (1970), speaks of the need
to restore and to maintain environmental quality to aid in the
"overall welfare and development of man," and Section
101(c), where Congress recognized that "each person should
enjoy a healthful environment. "

21. L.B. Sohn, supra note 15 at 61.
They have also been chromatically classified as blue,"
"red," and "green" rights. Jan Glazewski,
"The Environment, Human Rights and a New South African
Constitution," 171 South Africa Journal on Human Rights, 2
(1991).

32. Dwivedi and Tiwari,
"Environmental Protection in the Hindu Religion," in World
Religions and the Environment (O.P. Dwivedi, ed.). ''[T]he
Hindu Rishis of the Vedic and the Upanishadic era perceived the
value of maintaining a harmonious relationship between the needs
of man and the spectacular diversity of the universe. To them,
nature was not only the mother that sustained their life, it was
the abode of divinity. They did not believe that man's role on
earth was to exploit nature to his own selfish purpose. Nor did
they subscribe to the prevailing western world-view that the true
end of man was essentially to dominate and control nature by all
possible means. On the contrary, sanctity of life to them
included not only the effort to seek salvation, but to seek it by
developing a sacred attitude towards the spiritual significance
of nature. Man, in Hindu culture, was instructed to maintain
harmony with nature and to show reverence for the presence of
divinity in nature. Consequently, a Hindu has not been at war
with nature. Id. at 182.

Hindu culture, in ancient and medieval
times, provided a system of moral guidelines towards
environmental preservation and conservation. Environmental
ethics, as propounded by ancient Hindu scriptures and the seers,
was practiced not only by common man. but even by rulers and
kings. They observed these fundamentals sometimes as religious
duties, often as rules of administration or obligation for law
and order. hut either way, these principles were properly knitted
with the Hindu way of life. In Hindu culture, a human being is
authorized to use natural resources, but has no divine power of
control and dominion over nature and its elements. Hence, from
the perspective of Hindu culture, abuse and exploitation of
nature for selfish gain is unjust and sacrilegious. Id. at
184.

33. For fuller treatment of the subject, see
the Introduction by A.M. Taylor and D.M. Taylor in World
Religions and the Environment, supra note 32. See also J. Campbell,
The Fligh of the Wild Gander (Viking Press, 1969).

34. A.M. Taylor and D.M. Taylor, supra note
33 at 24.

35. See F. Capra, The Tao of
Physics (Shambhala, 1983).

36. To the Burmese "men are men, and
animals are animals, and men are far the higher. But he does not
deduce from this that man's superiority gives him permission to
ill-treat or kill animals. It is just the reverse. It is because
man is so much higher than the animal that he can and must
observe towards animals the very greatest care, feel for them the
very greatest compassion, be good to them in every way he can.
The Burmese's motto should be noblesse oblige." H.F.
Hall, "The Soul of a People," quoted by E.F. Schumacher
in Small is Beautiful, 89 (Rupa and Co., 1990).

37. R.F. Nash, The Rights of Nature: A
History of Environmental Ethics, 10 (University of Wisconsin,
1989).

43. For a detailed and fully reasoned
treatment of the subject, see E. Brown Weiss, supra note
5.

44. Id. at 293.

45. E. Brown Weiss, supra note 6 at
540-544.

46. L. Gündling, "Agora: What
Obligation Does Our Generation Owe to the Next? An Approach to
Global Environmental Responsibility? Do We Owe a Duty to Future
Generations to Preserve the Global Environment?" 84 A.J.I.L.
190, 212 (199(1).

60. P. Alston as Member of the Panel on
"Environment, Economic Development and Human Rights: A
Triangular Relationship," Proceedings of the 82nd Annual
Meeting, 51 (American Society of International Law, 1988).

62. Address by Barber B. Conable,
President, World Bank, on 11 Sept. 1989 in Tokyo, Japan, at the
Tokyo Conference on the Global Environment and Human Response
towards Sustainable Development.

63. United Nations Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Study
of the Problem of Discrimination Against Indigenous Population, 28,
U.N. Doc. E/CN.4/Sub.2/1986/7 and Adds. 1-4 (1986).

64. Our Common Future, supra note
10 at 12.

65. See Constitution of India. Part
IV, Article 46 and the Fifth Schedule.

68. The definition of "refugee"
in the Convention as adopted was: "For the purposes of the
present Convention the term 'refugee' shall apply to any person
who. . . as a result of events occurring before I January 1951
and owing to well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, unwilling to
avail himself of the protection of that country.... " The
temporal limitation of the Convention was removed by the
Protocol, so that the restrictive condition that the event that
gave rise to fear of persecution should have occurred before I
January 1951 was deleted.

69. For an analysis of the present state
of international refugee law. see J.C. Hathaway, " A
Reconsideration of the Underlying Premise of Refugee Law."
31 Harvard International Law Journal, 129(1990).

1. The internationalization of
human rights protection and of environmental protection

The parallel evolutions of human rights
protection and environmental protection disclose some affinities
that should not pass unnoticed. They both witness, and
precipitate, the gradual erosion of so-called domestic
jurisdiction. The treatment by the state of its own nationals
becomes a matter of international concern. Conservation of the
environment and control of pollution become likewise a matter of
international concern. There occurs a process of internationalization
of both human rights protection and environmental protection,
the former as from the 1948 Universal Declaration on Human
Rights, the latter - years later- as from the 1972 Stockholm
Declaration on the Human Environment.

With regard to human rights protection, 18
years after the adoption of the 1948 Universal Declaration, the
International Bill of Human Rights was completed with the
adoption of the two UN Covenants, on Civil and Political Rights
(and Optional Protocol), and on Economic, Social, and Cultural
Rights (1966), respectively. The normative corpus of
international human rights law is today a vast one, comprising a
multiplicity of treaties and instruments, at both global and
regional levels, with varying ambits of application and covering
the protection of human rights of various kinds and in distinct
domains of human activity.

As for environmental protection, the years
following the Stockholm Declaration likewise witnessed a
multiplicity of international instruments on the matter, equally
at both global and regional levels. It is estimated that nowadays
there are more than 300 multilateral treaties and around 900
bilateral treaties providing for the protection and conservation
of the biosphere, to which over 200 texts from international
organizations can be added.1 This considerable growth of international
regulation in the present domain has, by and large, followed a
"sectorial" approach, leading to the celebration of
conventions turned to certain sectors or areas, or concrete
situations (e.g., oceans, continental waters, atmosphere,
wildlife). In sum, international regulation in the domain of
environmental protection has taken place in the form of responses
to specific challenges.

The same appears to have taken place in
the field of human rights protection, where we witness a
multiplicity of international instruments: parallel to general
human rights treaties (such as the two UN covenants of human
rights and the three regional - European, American, and African
conventions), there are conventions turned to concrete situations
(e.g., prevention of discrimination, prevention and punishment of
torture and ill-treatment), to specific human conditions (e.g.,
refugee status, nationality and statelessness), and to certain
groups in special need of protection (e.g., workers' rights,
women's rights, protection of the child, protection of the
elderly, protection of the disadvantaged). In sum, human rights
instruments have grown, at normative and procedural levels,
likewise as responses to violations of human rights of
various kinds.

This being so, it is not surprising that
certain gaps may appear, as awareness grows as to the increasing
needs of protection. An example of such gaps, in the field of
human rights protection, can be found in our days, e.g., in the
protection to be extended to certain vulnerable groups, in
particular indigenous populations. Another example, in the area
of environmental protection, can nowadays be found, e.g., in the
needed enhancement of international regulation on climate change
and protection of the atmosphere.

A significant task for the near future -
if not for the present - will precisely consist in ensuring the
proper coordination of multiple instruments that have
grown in the last decades, at global and regional levels,
pursuant to the "sectorial" approach (supra), in
the domains of human rights protections as well as environmental
protection.2
Beyond the internationalization of human rights protection and of
environmental protection in the pattern referred to above, it was
soon realized that, in each of the two domains of protection,
there existed an interrelatedness among the distinct sectors that
were the object of regulation.

2. The globalization of human rights
protection and of environmental protection

The awareness of this interrelatedness has
decisively contributed to the evolution, in recent years, from
the internationalization to the globalization of human rights
protection as well as of environmental protection. As far as
human rights protection is concerned, two decades after the
adoption of the 1948 Universal Declaration of Human Rights, the
1968 Teheran Conference on Human Rights, in a global reassessment
of the matter, proclaimed the indivisibility of all human
rights (civil and political, as well as economic, social, and
cultural rights). This was followed by the landmark resolution
32/130, adopted by the UN General Assembly in 1977, where it
stated that human rights questions were to be examined globally.

That resolution endorsed the assertion of
the 1968 Teheran Proclamation of the indivisibility and
interdependence of all human rights, from a globalist
perspective, and drew attention to the priority to be accorded to
the search for solutions to massive and flagrant violations of
human rights.3
Three decades after the adoption of the 1948 Universal
Declaration, the UN General Assembly, bearing in mind the
fundamental changes undergone by so-called international society
- decolonization, capacity of massive destruction, population
growth, environmental conditions, energy consumption, amongst
others - by its resolution 32/130 endeavoured to overcome the old
categorizations of rights and to proceed to a needed global
analysis of existing problems in the field of human rights.

Such a new global outlook and conception
of the indivisibility of human rights, rendered possible by the
UN Charter itself, and externalized in GA resolution 32/130 of
1977, contributed to drawing closer attention in particular to
the rights pertaining to human collectivities and the measures of
their implementation. The matter was retaken by GA resolution
39/145, of 1984, and 41/117, of 1986, which reiterated the
interrelatedness of all human rights, whereby the pro section of
one category of rights should not exempt states from safeguarding
the other rights. Thus, human rights instruments turned to the
protection of certain categories of rights, or of certain rights
in given situations, or of rights of certain groups in special
need of protection, are to be properly approached on the
understanding that they are complementary to general human rights
treaties. Multiple human rights instruments reinforce each other,
enhance the degree of the protection due, and disclose an
overwhelming identity of purpose.

In the domain of environmental protection,
the presence - despite the "sector-by-sector"
regulation - of "transversal" issues and rules
contributed to the globalist approach. It was reckoned, e.g.,
that more and more often certain activities and products may
cause harmfuleffects in any environment (e.g., toxic or
dangerous substances, toxic or dangerous wastes, ionizing
radiations, and radioactive wastes); in fact, the problem of
dangerous substances is present in the whole of
"sectorial" regulation, thus pointing to globalization
and generating a "reglementation se superposant aux
differents secteurs."4

Already in 1974, two years after the
adoption of the Stockholm Declaration, the UN Charter on Economic
Rights and Duties of States warned that the protection and
preservation of the environment for present and future
generations were the responsibility of allstates (Article
30). And in 1980 the UN General Assembly proclaimed the
historical responsibility of states for the preservation of
nature on behalf of present and future generations.5 While in the past states
tended to regard the regulation of pollution by sectors as a
national or local issue, more recently they have realized that
some environmental problems and concerns are essentially global
in scope6
In its resolution 44/228, of 22 December 1989, whereby it decided
to convene a UN Conference on Environment and Development in
1992, the UN General Assembly recognized that the global
character of environmental problems required action at all levels
(global, regional, and national), involving the commitment and
participation of all countries; the resolution further affirmed
that the pro section and enhancement of environment were major
issues that affected the well-being of peoples, and singled out,
as one of the environmental issues of major concern, the
"protection of human health conditions and improvement of
the quality of life" (§12 (i)).

The global character of environmental
issues is reflected in the question, e.g., of conservation of
biological diversity; it is further illustrated, in particular,
by the problems linked to atmospheric pollution (such as
depletion of the ozone layer and global-climate change). Those
problems, initially thought of as being essentially local or even
transboundary, were to disclose "une portée pratiquement
illimitée dans l'espace."7 The threat of damage to many nations resulting
from global warming, for example, is a major problem, the cause
of which would hardly be traceable to a single state or group of
states, thus calling for a new approach on the basis of
strategies of prevention and adaptation and considerable
international cooperation.8 Thus, the UN General Assembly, by resolution
43153, of 6 December 1988, recognized that climate change is a
common concern of mankind, and determined that action should be
promptly taken to deal with it within a global framework.

Likewise, the Intergovernmental Panel on
Climate Change (IPCC), set up by WMO and UNEP, has indicated, as
one of the possible elements for inclusion in a future framework
convention on climate change,9 the recognition that climate change is a common
concern of mankind, affecting humanity as a whole, and to be thus
approached within a global framework.10 The 1989 Hague Declaration on the Atmosphere
insists on the search for urgent and global solutions to the
problems of the warming of the atmosphere and the deterioration
of the ozone layer. In the same line, the 1989 International
Meeting of Legal and Policy Experts, held in Ottawa, in its
report stated inter alia that the atmosphere constitutes a
"common resource of vital interest to mankind.11

And still in 1989 (November), the
Ministerial Conference on Atmospheric Pollution and Climatic
Change, held in Noordwijk, Netherlands, with the participation of
67 countries, considered the elements of a future framework
climate-change convention (to be further elaborated by the IPCC)
and reasserted the principle of shared responsibility of all
states. The 1989 Noordwijk Declaration on Climate Change pursued
a globalist approach (see §§8-9) and expressly stated that
"climate change is a common concern of mankind" (§7).12 In sum, recent trends in
environmental protection as well as in human rights protection (supra)
disclose a clear and progressive tendency from
internationalization towards globalization.

3. The globalization of protection
and erga omnes obligations

The globalization of human rights
protection and of environmental protection can also be attested
from a distinct approach, namely, that of emergence of erga
omnes obligations and the consequent decline and end of
reciprocity. In the field of human rights protection, reciprocity
is overcome and overwhelmed by the notion of collective guarantee
and considerations of ordre public. This operates a
revolution in the postulates of traditional international law.
Human rights treaties incorporate obligations of an objective
character, turned to the safeguard of the rights of human beings
and not of states, on the basis of a superior general public
interest (or ordre public). Hence the specificity of human
rights treaties.

Traces of this new philosophy are found in
international humanitarian law: pursuant to common Article 1 of
the 1949 Geneva Conventions, Contracting Parties are bound
"to respect and to ensure respect" to the four
Conventions "in all circumstances," i.e., irrespective
of considerations of reciprocity. Provisions with analogous
effects can be found in human rights treaties (e.g., UN Covenant
on Civil and Political Rights, Article 2; European Convention on
Human Rights, Article 1; American Convention on Human Rights,
Article 1). Those humanitarian instruments have transcended the
purely inter-state level in search of a higher degree of
protection of the human person, so as to ensure the safeguard of
common superior interests protected by them. Hence the universal
character of the system of protection of international
humanitarian law, which creates for states obligations erga
omnes.

The evolution of environmental protection
likewise bears witness of the emergence of obligations of an
objective character without reciprocal advantages for states. The
1972 Stockholm Declaration on the Human Environment refers
expressly to the "common good of mankind" (Principle
18). Rules on the protection of the environment are adopted, and
obligations to that effect are undertaken, in the common superior
interest of mankind. This has been expressly acknowledged in some
treaties in the field of the environment (e.g., preambles of the
1971 Treaty on the Prohibition of the Emplacement of Nuclear
Weapons and Other Weapons of Mass Destruction on the Sea-bed and
the Ocean Floor and in the Subsoil Thereof; the 1972 Convention
on the Prohibition of the Development, Production, and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and
on Their Destruction; the 1977 Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification
Techniques; the 1972 Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter; the 1974
Convention for the Prevention of Marine Pollution from Land-Based
Sources; the 1972 Convention for the Prevention of Marine
Pollution by Dumping from Ships and Aircraft; the 1972 Unesco
Convention for the Protection of the World Cultural and Natural
Heritage); it is further implicit in references to "human
health" in some environmental law treaties (e.g., the 1985
Vienna Convention for the Protection of the Ozone Layer, preamble
and Article 2; the 1987 Montreal Protocol on Substances That
Deplete the Ozone Layer, preamble; Article 1 of the three marine
pollution conventions quoted above).

The evolution, from internationalization
to globalization, of environmental protection can also be
detected in its spatial dimension. In the beginnings of
international environmental regulation, attention was turned to
environmental protection in zones under the competence of states
of the territorial type. One thus spoke of control of transboundary
or transfrontier pollution (a terminology reminiscent
of that employed in the OECD), with an underlying emphasis on the
relations between neighbouring countries or on contacts or
conflicts between state sovereignties. Soon it became evident
that, to face wider threats to the environment- as in, e.g.,
marine pollution and atmospheric pollution (acid rain, depletion
of the ozone layer, global warming) - it was necessary to
consider also principles applicable, "urbi et orbi,"
on a global scale, not only in zones where state interests
were immediately affected (transboundary pollution) but also in
other areas where state interests appeared not so visibly
affected

(e.g., protection of the atmosphere and of
the marine environment). In this common international law of the
environment, principles of a global character are to apply on the
territory of states irrespective of any transboundary or
transfrontier effect, and are to govern zones that are not under
any national territorial competence.13

In this connection, the Brundtland
Commission, reporting to the UN General Assembly in 1987,
dedicated a whole chapter to the management, in the "common
interest," of the so-called "global commons,"
i.e., those zones falling outside or beyond national
jurisdictions.14
Likewise, the Centre for Studies and Research in International
Law and Relations of the Hague Academy of International Law,
dwelling upon the issue of transfrontier pollution and
international law in its 1985 session, singled out the gradual
evolution from a transboundary or "transterritorial" to
a global perspective of the preservation of the environment (and
action in favour of resources of the common heritage of mankind).15

That international law is no longer
exclusively state-oriented can be seen from reiterated references
to "mankind," not only in doctrinal writings,16 but also and significantly
in various international instruments, possibly pointing towards
an international law of mankind, pursuing preservation of the
environment and sustainable development on behalf of present and
future generations. Thus, the notion of cultural heritage of
mankind can be found, e.g., in the Unesco conventions for the
Protection of Cultural Property in the Event of Armed Conflict
(1954) and for the Protection of the World Cultural and Natural
Heritage (1974). The legal principle of the common heritage of
mankind has found expression in the realms of the law of the sea
(1982 UN Convention on the Law of the Sea, Part XI, especially
Articles 136-145 and 311 (6); 1970 UN Declaration of Principles
Governing the Sea-bed and the Ocean Floor, and the Subsoil There
of, Beyond the Limits of National Jurisdiction) and of the law of
outer space (1979 Treaty Governing the Activities of the States
on the Moon and Other Celestial Bodies, Article 11; and see the
1967 Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies, Article I).17 The reconsideration of the basic postulates of
international law bearing in mind the superior common interests
of mankind has been the object of attention of general works on
the subject at doctrinal level (e.g., Jenks, Dupuy).18

Despite semantic variations in
international instruments on environmental protection when
referring to mankind, a common denominator underlying them all
appears to be the common interest of mankind. There seems to be
occurring lately an evolution from the notion of common heritage
of mankind (as emerged in the contexts of the law of the sea and
space law) to that of common concern of mankind. The latter has
been the object of consideration by the UNEP Group of Legal
Experts, which convened in Malta on 13-15 December 1990, in order
to examine the implications of the concept of "common
concern of mankind" on global environmental issues. In fact,
it is not at all casual that the UN General Assembly resolution
43/53, of 6 December 1988, introduced the recognition that
climate change was a "common concern" of mankind,
since, in the wording of its first operative paragraph, climate
was "an essential condition which sustains life on
earth."

Such an essential or fundamental condition
is inextricably linked to the new idea of "commonness."
The newly proposed notion is inspired in considerations of
international ordre public. It appears as a derivative of
the earlier "common heritage" approach, meant to shift
emphasis from the sharing of benefits from exploitation of
environmental wealths to fair or equitable sharing of burdens in
environmental protection, and the needed concerted actions to
that effect with a social and temporal dimensions.19 It could hardly be
doubted, as UNEP itself has acknowledged, that environmental
protection is "decisively linked" to the "human
rights issue,"20 to the very fulfillment of the fundamental right
to life in its wide dimension (right to live-see section III, infra).

Resort to the very notion of mankind,
humankind, immediately brings into the fore, or places the whole
discussion within, the human rights framework and this should be
properly emphasized; it should not be left implicit or neglected
as allegedly redundant. Just as law, or the rule of law itself,
does not operate in a vacuum, mankind, humankind, is neither a
social nor a legal abstraction: it is composed of human
collectives, of all human beings of flesh and bone, living in
human societies.

If it is conceded that, if and once the
concept of common concern of mankind becomes widely and
unequivocally accepted, rights and obligations are bound to flow
from it, then one is led to consider as its manifestation or even
materialization the right to a healthy environment: within the
ambit of the droit de l'humanité, the common concern of
humankind finds expression in the exercise of the recognized
right to a healthy environment, in all its dimensions
(individual, group, social, or collective, and intergenerational
- see section XI infra), precisely as mankind is not a
social or legal abstraction and is formed by a multitude of human
beings living in societies and extended in time. The human rights
framework is ineluctably present in the consideration of the
regime of protection of the human environment in all its aspects;
we are here ultimately confronted with the crucial question of survival
of humankind, with the assertion - in the face of the threats
to the human environment - of the fundamental human right to
live.

Just as a couple of decades ago there were
questions that were "withdrawn" from the domestic
jurisdiction of states to become matters of international concern
(essentially, in cases pertaining to human rights protection and
self-determination of peoples),21 there are nowadays global issues such as climate
change that are being erected as a common concern of
mankind. Here, again, the contribution of human rights protection
in piercing the so-called reserved domain of states can be
perceived in historical perspective. The globalization of the
regimes of human rights protection and environmental protection
heralds the end of reciprocity and the emergence of erga omnes
obligations.

The prohibition of the invocation of
reciprocity as an excuse for non-compliance of erga omnes obligations
is confirmed in unequivocal terms by the 1969 Vienna Convention
on the Law of Treaties: in providing for the conditions in which
a breach of a treaty may bring about its suspension or
termination, the Vienna Convention (Article 60 [5]) expressly
excepts "provisions relating to the protection of the human
person contained in treaties of a humanitarian character."
This provision pierces a domain of international law - the law of
treaties - traditionally so markedly infiltrated by the
voluntarism of states, and constitutes a clause of safeguard or
defence of human beings. Thus, the contemporary law of treaties
itself, as attested by Article 60 (5) of the Vienna Convention,
discards the principle of reciprocity in the implementation of
treaties of a humanitarian character. The obligations enshrined
therein generate effects erga omnes. The overcoming of
reciprocity in human rights protection and in environmental
protection has taken place in the constant search for an
expansion of the ambit of protection (for the safeguard of an
increasingly wider circle of beneficiaries, human beings and
ultimately mankind), for a higher degree of the protection due,
and for the gradual strengthening of the mechanisms of
supervision, in the defence of common superior interests. Yet
another affinity in the recent developments of human rights
protection and environmental protection that has not been
sufficiently examined so far, and to which we shall now turn,
lies in the incidence of the temporal dimension in both domains
of protection.